Just what is our responsibility?

By Carol Gee

House Judiciary Committee Chairman, John Conyers (D-Mich), posted a must-read at The Huffington Post yesterday titled "Our Responsibility#." In his excellent and important piece he discussed the various possibilities for actions to hold the Bush administration accountable for its misdeeds. Rep. Conyers begins:

. . . the question remains how best to respond to the severe challenge posed to our constitutional structure, and to our national honor . . . and in particular its national security programs. Faced with a record of widespread warrantless surveillance inside the United States, brutal interrogation policies condemned by the administration's own head of the Guantanamo Bay military commissions as torture, and flawed rendition practices that resulted in innocent men being abducted and handed to other countries to face barbaric abuse, what actions will we take to meet our commitment to the rule of law and reclaim our standing as a moral leader among nations?

Closing Guantanamo Bay -- was a very important start to redressing the damage done to the United States during the previous administration. It was one of the first actions taken by President Obama after his inauguration, according to ProPublica: "Obama Begins to Fulfill Gitmo Promise" (1/22/09). To quote:

President Obama has just signed a series of executive orders essentially dismantling the former administration’s detention system for terror suspects. Top among those orders is a directive to close Gitmo "no later than one year from now."

Closing this offshore detention facility will prove to be very difficult, according to those who have been thinking about how to do it. Many on both sides of the question wonder just how much is possible, including Politico.com, who headlined, "Why the Gitmo policies may not change" (1/23/09). To quote the 6 signs seen by skeptical author Josh Gerstein:

1. Everyone has to follow the Army Field Manual -- for now . . . 2. Obama ordered a 30-day review of Guantanamo conditions—by the man currently responsible for Guantanamo. 3. Obama vowed no torture on his watch, but force-feeding and solitary confinement apparently continue at Guantanamo for now. 4. The vast majority of detainees in American custody may see no benefit from Obama’s orders. 5. The orders downplay the possibility that some prisoners might be set free in America. 6. Military commissions are shut down…. for now.

One of the most vexing problems is what to do with all the suspects who seem too dangerous to release. Already many in Congress are saying NIMBY, (not in my back yard). AfterDowningStreet asks, "Should "Homeland Security" Set Up Detention Camps on Military Bases?*" (1/28/09).

Legally speaking -- Another ironic reality has to do with how the new administration will represent the interests of the U.S. government in all of the upcoming court cases involving detainees. Under a change of leadership the government's representations in court may not change as we would have assumed. Politico.com has the story: "Obama's lawyers set to defend Yoo" (1/28/09). To quote:

. . . now President Obama’s incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court. Next week, Justice Department lawyers are set to ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a “dirty bomb.”

. . . That’s not all. On Thursday, Justice Department lawyers are slated to be in Charleston, S.C., to ask a federal magistrate there to dismiss another lawsuit charging about a dozen current and former government officials with violating Padilla’s rights in connection with his unusual detention on U.S. soil, without charges or a trial

Torture -- is probably the easiest to see as outrageous, unlawful, not what the United States is about, etc. The world is not shy about pointing this out to us. For example, from Buzz Flash: comes the report that "Bush, Rumsfeld should be pursued for torture: UN rappporteur*" (1/20/09). See also, The Raw Story#. To quote:

"Judicially speaking, the United States has a clear obligation" to bring proceedings against Bush and Rumsfeld, the United Nations Special Rapporteur on Torture Manfred Nowak said, in remarks to be broadcast on Germany's ZDF television Tuesday evening.

And the majority of professional interrogators are not shy, at least not since January 20, in telling us that torture simply does not work well in obtaining credible intelligence information. Here is a good illustration from Yahoo! News: "Obama says no to torture; interrogators say yes to Obama#" (1/23/09). The story explores the fact that many professional interrogators welcome President Obama's decision.

Intelligence gathering -- is necessary in order to protect the citizens of the United States from its enemies. During the period before the attacks of 9/11/01 the intelligence gathered may not have been well analyzed or well shared among those who needed it to keep us safe. According to The Raw Story, "PBS [said]: NSA could have prevented 9/11 hijackings#" (1/27/09). To quote:

The super-secretive National Security Agency has been quietly monitoring, decrypting, and interpreting foreign communications for decades, starting long before it came under criticism as a result of recent revelations about the Bush administration's warrantless wiretapping program. Now a forthcoming PBS documentary asks whether the NSA could have prevented 9/11 if it had been more willing to share its data with other agencies.

Intelligence gathering has, up until the summer of last year, been covered by the civil liberties protections of the Fourth Amendment of the U.S. Constitution. Because the Foreign Intelligence Surveillance Act was changed, and the companies assisting the government to spy on its own citizens were immunized from suit, we are not guaranteed protection from unreasonable search and seizure of much of our private information. Recent revelations are covered in this piece from The Raw Story: "Whistleblower: NSA spied on everyone, targeted journalists#" (1/21/09) To quote:

Sen. Rockefeller believes NSA may have spied on him; Ex-NSA analyst believes program a remnant of 'Total Information Awareness' . . .

Former National Security Agency analyst Russell Tice, who helped expose the NSA's warrantless wiretapping in December 2005, has now come forward with even more startling allegations. Tice told MSNBC's Keith Olbermann on Wednesday that the programs that spied on Americans were not only much broader than previously acknowledged but specifically targeted journalists.

. . . "In one of the operations that I was in, we looked at organizations, just supposedly so that we would not target them," Tice told Olbermann. "What I was finding out, though, is that the collection on those organizations was 24/7 and 365 days a year -- and it made no sense. ... I started to investigate that. That's about the time when they came after me to fire me."

Senator, now President, Barack Obama voted for the FISA bill that granted immunity to the telecoms and that stripped much of the civil liberties protection out of the surveillance statutes. I had hoped that his election would remind him that he is an expert in constitutional law, and that the warrantless domestic surveillance now in place is, in my opinion, unlawful. But it does not appear to be the case. CQ Politics reported that, "Blair backs retroactive immunity for companies under FISA overhaul." To quote:

President Obama’s choice for director of national intelligence says he supports continuing Bush administration efforts to provide retroactive legal immunity to companies being sued for their alleged role in the National Security Agency’s warrantless surveillance program. . . . Blair was unequivocal in answers posted on the committee Web site to written questions after the hearing.

“Do you believe that those private partners who assisted the government should be given civil liability protection?” Christopher S. Bond of Missouri, the ranking Republican on the panel, asked Blair in the written questions.

“Yes,” Blair answered. “The terms and conditions of that civil liability protection are spelled out in the FISA Amendments Act.”

. . . Although Blair could hold sway over the matter, [Attorney General Eric] Holder is the official who would take any court action on retroactive immunity.

CQ - Behind the Lines has more on these issues:

(1/22/09) -- As one of its last acts, the Bush administration asked a federal judge late Monday night to stay enforcement of a ruling that would keep alive a lawsuit testing presidential authority to eavesdrop on Americans without warrants, Threat Level’s David Kravets recounts.
. . . In narrowly affirming the constitutionality of warrantless surveillance, a secret intel court relied on an incomplete and likely misleading factual record, Secrecy News has Sen. Russell Feingold, D-Wis., alleging.

(1/26/09) The Obama administration “fell in line with the Bush administration” last week when it urged a federal judge to set aside a ruling in a closely watched domestic wiretap case, Threat Level’s David Kravets recounts.

Unitary Executives and secrecy -- make for the kind of lawlessness that worries a lot of people, including Chairman John Conyers (above). But our new President is operating in a much more open style than former President Bush. Transparency has been his watchword. Perhaps a combination of pragmatism, determination to gather usable intelligence, and a willingness to commit to transparency explains his FISA stance. He may be thinking that, since he is having to have everything out in the open (transparency) then we citizens should be willing to live that way, also. But that means that we are forced to trust the government (even his good government) with all of our private information. That includes credit card records, library records, phone conversations, e-mails, and medical records. And as a civil libertarian, my responsibility is not to give up on this fight. On this one the President is wrong and I will remain a member of the loyal opposition regarding these issues.

Do not get me wrong, on balance I am delighted that we have such a wonderful new President. So I will go back and remind myself of the way it was until he came into office. ProPublica:"Obama reverses Bush's executive privilege claim over documents" (1/21/09), making open records advocates very happy. ProPublica has the story regarding "Bush’s Secret Counterterrorism Law Book—and the Demands to Release It" Related: "The missing Memos."

Reference: The Missing Memos," a comprehensive interactive list (1/28/09). To quote the list description:

The Bush administration’s controversial policies on detentions, interrogations and warrantless wiretapping were underpinned by legal memoranda. While some of those memos have been released (primarily as a result of ACLU lawsuits), the former administration kept far more memos secret than has been previously understood. At least three dozen by our count. The decision to release them now lies with President Obama. To help inform the debate—and inject an extra dose of accountability—we’re posting the first comprehensive list of the secret memos. (The ACLU first compiled a list, which ProPublica verified and expanded on.

Hat Tip Key: Regular contributors of links to leads are "betmo*" and Jon#.

(Cross-posted at South by Southwest.)